Originally Posted - November 23, 2005

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In a 8-2 decision almost certain to be challenged before the Court of Appeals, the New York State Commission on Judicial Conduct has voted to remove Queens Supreme Court Justice Laura D. Blackburne for directing a court officer to escort a defendant out of the courthouse through the judge's private entrance in order to elude a detective who was waiting to arrest the defendant.

The state Office of Court Administration immediately removed Blackburne, 67, from active judicial service. She has been a Supreme Court judge since 2000 and prior to that, from 1996 to 1999, served as a judge of Civil Court of the City of New York.

Blackburne is only the fifth Supreme Court justice to be removed since the commission's formation in 1978.

She has a long history of public service, having served as chair of the New York City Housing Authority and as pro bono counsel for the NAACP. Her counsel, Richard Godosky of Godosky & Gentile has said that Blackburne will appeal the judicial panel's finding to before the Court of Appeals. She resigned as chair of the housing authority in 1992 after it was alleged she spent thousands of tax dollars for overseas business trips and for redecorating her office with items including a $3,000 pink leather couch.

In their determination, the commission found that she had acted out of anger, claiming that the detective had come to court under "ruse" of wanting to question the defendant when he actually intended to arrest him. In its majority ruling the commission found that the judge had "placed herself about the law she is sworn to uphold and abused the power of her office". In imposing the sanction of removal, the commission stated that the judge's conduct "transcended the boundaries of acceptable judicial behavior". http://www.scjc.state.ny.us/Determinations/B/blackburne.htm

Commission members Stephen Coffey of the Albany law firm O'Connell & Aronowitz and attorney Richard Emery of Emery Celli, Cuti, Brinckerhoff & Abady issued strong dissents to removing Blackburne from judicial office.

Emery said the removal was "unprecedented and unfair" while Coffey said she was not "unfit" or "unethical" but "merely human".

Emery said that neither the commission nor the Court of Appeals has ever removed a judge based on a single event of misconduct, no matter how egregious, unless the misconduct was based upon breach of trust, venal conduct, moral turpitude or personal gain for the judge. "It is unfair because this commission is imposing career capital punishment upon an experienced, highly-respected and accomplished jurist which an unblemished disciplinary history who indisputably, is unlikely to engage in this type of misconduct again".

In his written dissent, Emery referenced three cases in which judges had been censured for behavior that he found more egregious than that of Judge Blackburne.

"In Matter of Friess, 1982 Annual Report 109, a highly publicized case, the judge released a murder defendant into his own custody, took her to his home overnight (although with no ulterior sexual motive) and provided her with counsel for a subsequent court appearance. The commission stated that Judge Friess "exhibited extraordinarily poor judgment and a serious misunderstanding of the role of a judge in our legal system…diminish[ing] public confidence [and] bring[ing] the judiciary into disrepute." In that case, the Commission concluded that the judge's "capacity to serve and regain public confidence had not been irreparably harmed."

"In Matter of Mills, 2005 Annual Report 185, a majority of the commission censured a judge who held an acquitted, unrepresented defendant in an isolation cell for five days, during which he doctored his contempt order to cover up the illegal basis for the punishment. In addition, in another incident before the commission at the same time, Judge Mills jailed a litigant's father after the judge overheard him use an expletive in a courthouse parking lot. Notwithstanding the commission's characterization of Mills' misconduct as a "travesty of justice," he remains a judge to this day.

"Finally, the result in Matter of Dusen, 2005 Annual Report 155, is particularly instructive. In Dusen we censured the judge after he arranged the release of an incarcerated defendant by knowingly issuing an illegal court order and fabricating a conviction in order to facilitate his deportation. Dusen's misuse of his judicial authority to pervert the result in a particular case in order to accomplish what the judge believed was the best outcome was, in my view, a "serious breach of trust" and abuse of authority more "egregious" than that engaged in by Justice Blackburne.

"Dusen raises the question of what Justice Blackburne's sanction would have been if she had facilitated an illegal arrest rather than frustrated a proper arrest. Apparently, the majority's view is that frustrating a proper arrest is more "egregious" than facilitating an illegal conviction and deportation. This stands logic on its head, for the consequences to the deported defendant are so profound compared with the short delay of a proper arrest.

Coffey said that "It is indisputable that the respondent's action was based on what she in part felt was a ruse perpetrated by an arresting officer. While this does not condone her action, it should not be the basis of removal from office. Unfortunately, the majority does so, even though the respondent acted in her official capacity in open court, has an absolutely unblemished judicial record, has a character so exemplary that an impressive array of witnesses testified in her defense, and acted with no malice, with no hope of personal gain, and not out of any personal vindictiveness.

Witnesses for the judge included former Mayor David Dinkins, Congressman Charles B. Rangel and Justice Stephen W. Fisher of the Appellate Division, Second Department, who had assigned Judge Blackburne to the Drug Treatment Court when he was the administrative judge in Queens.

"While her decision was admittedly wrong, the record reflects that her motive, in large part, was essentially to protect what she perceived to be the rights of the defendant. In addition, within hours of her order, she recognized her mistake, and long before she was charged by the Commission with misconduct, freely acknowledged her culpability, a position which she has consistently and persistently adhered to throughout this entire process".

Blackburne's attorney has disputed some of the findings and alleged facts in the case.

On June 10, 2004,Blackburne was presiding over cases in the Drug Treatment Court, Queens County, where she had served for several months. There were approximately 25 cases on the calendar that day. One of the cases involved Derek Sterling, a defendant charged with selling drugs who had been enrolled in a treatment program since early 2003.

Treatment Court proceedings are available as an alternative to incarceration to defendants who are charged with a non-violent felony and have a history of addiction. In such proceedings in Queens County, the defendant pleads guilty to a felony and sentencing is deferred while the defendant is enrolled in a treatment program; upon successful completion of the program, the plea is withdrawn and the charge is dismissed. The defendant is required to appear in court on a regular basis so that the treatment can be monitored.

On June 10, 2004, at around 10 a.m., Detective Leonard Devlin arrived at the courthouse for the purpose of arresting Mr. Sterling on charges of robbery and assault, unrelated to the case on respondent's calendar, according to the commission.

The commission's determination said that Detective Devlin told a court officer, Sgt. Richard Peterson, that he was there to question Sterling in connection with a robbery. As a result, the sergeant believed that the detective was going to take Sterling into custody. Sgt. Peterson referred the detective to Jeffrey Martinez, a representative from Treatment Alternatives for a Safer Community ("TASC"). Sgt. Peterson and Mr. Martinez explained to the detective that Mr. Sterling was in a residential treatment program in Queens and provided the location of the residence, which the detective wrote down. The assistant district attorney Sharon Scott Brooking, was also notified.

Thereafter, the detective waited outside the public entrance to the courtroom in order to arrest Mr. Sterling after his case was concluded. It was the accepted protocol that the police not arrest a defendant at the court until the calendar call of the defendant's case was finished.

Sgt. Peterson went to see respondent in chambers and informed her that a detective was in the courtroom to question Sterling in connection with a robbery.

The judge told the officer Peterson that Sterling's attorney had to be notified and that the detective should not discuss anything with Sterling until the his attorney was present. A short while later, the commission said the judge told the officer to advise the detective that the Sterling's attorney was coming and that the detective should not speak to Sterling.

Sterling's assigned counsel, Joseph Justiz, was unavailable; a substitute was contacted but was also unavailable; ultimately, Warren M. Silverman, a court-appointed 18-B attorney, was notified to appear on behalf of Sterling.

After the calendar call began, Sterling left the courtroom twice for brief periods and passed Detective Devlin, who was in the hallway.

The judge allegedly told Peterson to arrange for Silverman and Devlin to speak together. When Silverman arrived, he spoke to the detective n in the hallway. Silverman asked the detective if he wanted to speak to Sterling "as a subject or as a witness." The detective indicated "subject." Silverman informed the detective that Sterling declined to speak to the detective, was represented by counsel and should not be questioned without counsel. Silverman gave the detective his card. The detective replied, "Then he is going to the 106th," referring to his precinct. Silverman asked the detective if he intended to arrest Mr. Sterling, and the detective said "yes." Silverman asked what the charges concerned, and the detective declined to say. Silverman spoke briefly with the defendant.

In the courtroom, the judge called Silverman to a sidebar and had a private conversation with him. Silverman told respondent that the detective had indicated that he was going to arrest Sterling. Blackburne asked what crimes would be charged, and Silverman said that the detective did not tell him that information. Blackburne then said that she was going to have Sterling taken out of the courtroom and out of the building through a side entrance.

She reportedly called Peterson to the bench and directed him to take Sterling "out the back stairwell" at the end of the calendar call. The back area is a secure hallway used by judges, jurors and court staff, and has a stairwell that leads from the third floor to the first floor, to the judges' parking lot. Peterson was "stunned" by the instruction and did not reply, according to the commission.

The commission said Peterson was concerned because he felt he could get in trouble for either following or not following respondent's instruction. He discussed the matter with another court officer and with ADA Sharon Scott Brooking. The sergeant asked the ADA whether following respondent's direction would be considered an obstruction of justice.

Peterson approached the judge again, stated that he was "uneasy" about her directive and asked respondent to speak to the ADA.

She summoned the prosecutor to the bench who told Blackburne that taking the defendant out the back would not be appropriate and that defendants should be arrested at court, not at the treatment programs, since defendants were encouraged to feel safe at the programs. Blackburne responded that she was insulted that the detective, whose actual intention was to make an arrest, had entered the courtroom under the "ruse" of questioning Sterling.

On the record, in open court but outside the presence of the detective, Blackburne accused the detective of coming to court under the "ruse" of wanting to ask questions when, in fact, he intended to arrest the defendant. Out of anger, Blackburne then ordered that Sterling be escorted out of the court through a private exit in order to avoid arrest, according to the commission's determination.

When the proceeding ended, Peterson approached the judge, again related that he felt uneasy, and expressed his concern that her direction amounted to an obstruction of justice. She allegedly interrupted him and, while starting to stand up at the bench, stated that he had been given a direction and that if he did not take Sterling out through the back exit, she would do it herself. Peterson replied that he would do it. Peterson concluded that he, rather than the judge, should escort the defendant since he did not want to compromise respondent's safety. Peterson then escorted Sterling out the side doorway, through the secure hallway and stairwell, and out the door to the parking lot.

When Devlin learned that Sterling had left through a back exit, he hurriedly left through the front door to try to locate him but was unable to do so, the commission said.

After escorting Sterling from the courthouse, Peterson went to the security office, where he met with his captain and informed him that he was going to prepare an "unusual occurrence report." Peterson submitted several reports memorializing the event.

Sterling was arrested the following day at the treatment center and was taken into custody. Bail was set at $50,000. The charges against him were ultimately dismissed.
11-23-05

© 2005 North Country Gazette